92 Decision Citation: BVA 92-06701
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. ) DATE
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THE ISSUE
Whether new and material evidence has been submitted which
is sufficient to reopen a claim for service connection for
schizophrenia.
ATTORNEY FOR THE BOARD
P. A. Jones, Associate Counsel
INTRODUCTION
The veteran had active military service from February to
December 1979. A rating decision of August 1982 by the
Atlanta, Georgia Regional Office (hereinafter RO) denied
service connection for schizophrenia. The veteran failed to
file a timely notice of disagreement and the rating decision
became final. This matter came before the Board of
Veterans' Appeal (the Board) on appeal from a rating
decision of November 1989 which continued to deny service
connection for schizophrenia on the grounds that no new and
material evidence had been submitted. A notice of
disagreement was received in July 1990. A statement of the
case was issued in August 1990. A supplemental statement of
the case was issued in November 1990. A written statement
of the veteran was accepted as a substantive appeal in lieu
of the official Form 1-9 in February 1991. The veteran
submitted a formal substantive appeal in May 1991. Another
supplemental statement of the case was issued in May 1991.
In November 1991, the case was remanded by the Board in
order to schedule the veteran for a personal hearing, but
after the hearing was scheduled, the veteran failed to
appear. This case was again received and docketed by the
Board in January 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred in denying him
service connection for schizophrenia which he states was
incurred in or aggravated by service. He asserts that the
evidence he submitted is sufficient to reopen his claim, and
supports his entitlement to service connection for
schizophrenia.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the evidence submitted by the
veteran is not new and material, and the rating decision of
August 1982 is final.
FINDINGS OF FACT
1. The RO's decision of August 1982 denied service
connection for schizophrenia.
2. An appeal was not received within a year following
notice of the decision.
3. Additional evidence submitted since the August 1982
decision is not new and material to the question of service
connection for schizophrenia.
CONCLUSION OF LAW
The August 1982 RO decision which denied service connection
for schizophrenia is final and no new and material evidence
has been submitted which would be sufficient to reopen the
claim for service connection for schizophrenia. 38 U.S.C.
§§ 1131, 5107(a), 5108, 7105 (1989)(formerly §§ 331,
3007(a), 3008, 4005, recodified in 1991); 38 C.F.R.
3.104(a), 3.307, 3.309, 19.118 and 19.153.
REASONS AND BASES FOR DECISION
A rating decision in August 1982 denied the veteran's claim
for service connection for schizophrenia. The veteran
failed to file a timely appeal and the decision became
final. 38 C.F.R. 3.104(a), 20.201. In order to reopen a
claim previously denied, new and material evidence must be
submitted. 38 U.S.C. § 5108(b). "New" evidence means more
than evidence which was not previously of record; it must be
more than merely cumulative. "Material" evidence is
evidence which is relevant and probative to the issue and
which, when viewed in the context of all the evidence,
presents a reasonable possibility of a change in the
outcome. See Manio v. Derwinski, U.S. Vet. App. No. 90-86
(February 15, 1991) and Colvin v. Derwinski, U.S. Vet. App.
No. 90-196 (March 8, 1991).
The evidence which was of record at the time of the 1982
decision included service medical records which failed to
show any symptoms, diagnosis or treatment for
schizophrenia. A Department of Veteran's Affairs (VA)
treatment record of February 1979 revealed that the veteran
exhibited evidence of situational adjustment reaction. A
letter of October 1979 from a clinical psychologist of the
Department of the Air Force, indicated that the veteran was
an outpatient in September 1979 at the Department of Mental
Health. The letter reflected that a determination was made
that the veteran had a character and behavior disorder and a
diagnosis of occupational maladjustment was made. The
record revealed that the veteran was discharged from service
based upon "unsuitability, apathy, and a defective
attitude." Also of record was a May 1982 VA examination
report which diagnosed schizophrenia. The basis for the
1982 denial was that a psychosis was not present in service
or within one year of the veteran's discharge.
The evidence which has been submitted, in an attempt to
reopen the claim, consists of a December 1981 psychiatric
report from Grady Memorial Hospital, which showed that the
veteran suffered from major depression, rule out
schizophreniform disorder (paranoid type). Although
psychotic behavior was reported during this hospitalization,
this post-dates the presumptive period. Multiple treatment
records from the VA Medical Center covering the period from
June 14, 1982 through 1989 were also submitted. The veteran
was hospitalized in August 1982 and again in January 1983
for schizophrenia. Although a diagnosis of schizophrenia
was made, the evidence fails to establish a relationship
between the psychotic behavior in December 1981 and the
schizophrenia noted in 1982 with any event or occurrence
during service. Lay statements submitted by the veteran to
support his claim for service connection also fail to show
that schizophrenia was incurred in or aggravated by
service. They are not supported by the objective medical
documentation on file. In fact, the additional evidence
submitted fails to meet the "bright line" question
enunciated in Colvin, i.e. whether there is a reasonable
possibility that the new evidence, when viewed in the
context of all of the evidence, both new and old, would
change the outcome. See also, Smith v. Derwinski, U.S. Vet.
App. No. 89-13 (March 15, 1991). Although the new evidence
establishes the presence of psychotic symptoms at an earlier
date, it does not establish the presence of psychosis within
the presumptive period. The Board views the additional
evidence as being redundant and lacking in probative value
as to whether schizophrenia was incurred in or aggravated by
active military service or manifested within one year
following separation from service. We conclude that there
is no reasonable possibility that the additional evidence,
when viewed in the context of all the evidence, would change
the outcome of the decision. Accordingly, the veteran's
claim is not reopened and the RO's 1982 decision remains
final.
ORDER
New and material evidence not having been submitted to
reopen a claim of entitlement to service connection for
schizophrenia, the benefit sought on appeal remains denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
W. H. YEAGER, JR., M.D. JAN DONSBACH
JOAQUIN AGUAYO-PERELES
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991)
(formerly § 4066), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988. Veterans' Judicial Review
Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.
(NOTE: The section numbers of title 38, United States Code,
were changed in 1991. The new section numbers are given
above, followed, in parentheses, by "formerly 38 U.S.C." and
the old section numbers in effect prior to the 1991
revisions.)